McGuire Law Offices

Estate Planning

Wills:

A will avoids costs and complications for your heirs when you die. Besides providing instructions about gifts of your property-like your home, car, investments and jewelry-your will can provide instructions for payment of your debts, selection of an executor for your estate, and appointment of a guardian for your children. Without a will, your property will be distributed according to state law and a court may select an administrator for your estate and a guardian for your minor children. Your lawyer can help you prepare a valid will that minimizes taxes and reduces the time and expense of handling your estate.

You should have a will if you own any property-a home, a car, bank accounts, stocks and bonds, retirement benefits, jewelry, clothing, household goods, and so on. A will lets you distribute your property as you want with a minimum or costs and taxes. It is an opportunity to select an executor for your estate, a guardian for your children. establish trusts and dispense with costly bonds. If you don't have a will, ask your lawyer about drafting one without delay.

Trusts:

In recent years, living trusts have grown increasingly popular as substitutes for wills in estate planning. They are sometimes called revocable trusts or inter-vivos trusts. Living trusts can have several advantages over wills, including avoiding probate, avoiding guardianship, maintaining liquidity, and keeping privacy. You can create a living trust with a simple trust dlx:umcnt and change it at any time. You can transfer all of your assets to the trust but continue to use and manage them during your lifetime. After you die, your trustee will transfer ownership of the assets to tile beneficiaries named in the trust.

An important benefit of living trusts is the speed with which your property can be transferred to your heirs after your death. In addition, a living trust is private. Only you, your trustee, and your beneficiaries will know the value of the trust property, how it is to be distributed and the names of your beneficiaries. This pamphlet reviews the basics of how to create and use a living trust. Your lawyer can help you decide whether a living trust is appropriate in your circumstances and prepare a trust document that meets your goals.

Living trusts have many advantages in estate planning. Unlike wills, living trusts do not require lengthy and costly probate proceedings. Your property and heirs will not be listed in public records in a courthouse. And your property can be transferred to your heirs almost immediately after your death. The advantage of the living trust must be weighed against the expense and effort of creating and administering the trust.

Ask your lawyer whether a living trust is the right estate planning tool for you. Your lawyer can carefully draft a trust document to meet your needs and objectives and help you to reduce taxes for yourself and your heirs. Your lawyer can also help you prepare other estate planning documents, such as a will, a durable power of attorney, and a care power of attorney.

Probate Law:

Probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

Florida law establishes three types of probate administration:

1. Formal Administration, with which most of this pamphlet deals;
2. Summary Administration and
3. Family Administration.

Florida law also establishes a nonadministration proceeding called "Disposition of Personal Property Without Administration."

Generally, probate assets are those assets in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example:

a bank account in the sole name of a decedent is a probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a probate asset;
a life insurance policy payable to a specific beneficiary is not a probate asset, but a policy payable to the decedent's estate is a probate asset;
real estate titled in the sole name of the decedent is a probate asset (unless it is homestead), but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset;
property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

This list is not exclusive but is intended to be illustrative.

Probate is necessary to wind up the affairs the decedent leaves behind. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will.

Power of Attorney:

Adults who become incapable of caring for themselves, their property or their dependents may have a guardian appointed for them. However, guardianship can be avoided through the use of living wills and powers of attorney. In such circumstances, personal preferences can be respected without the need for court-appointed guardians. Living wills and powers of attorney can provide that they become effective when a person is temporarily or permanently unable to handle his or her financial or personal affairs due to illness or injury. This pamphlet explains how your lawyer can help you plan ahead by using living wills and powers of attorney. It also discusses guardianship procedures and the advantages of using powers of attorney to avoid them.